Instead Of Better Defining Fair Use... Should We Define Unfair Use?

from the thought-exercise dept

Copycense kicked off an interesting thought exercise, in questioning if, instead of trying to carefully define what qualifies as "fair use," we might be better off trying to define what constitutes "unfair use." Of course, some copyright system supporters might note that copyright itself defines what unfair use is -- and it's pretty much any unauthorized reproduction, distribution, performance etc. of a covered work. In that world, "fair use" are the narrow exceptions.

But there's a strong argument to be made that that's wrong. The purpose of copyright -- as we remind folks every so often -- was set about to "promote the progress" with the main focus being on better encouraging education through knowledge transfer. So, perhaps the case can be made that rather than focusing on narrow exceptions to copyright law, we should go back to realizing that copyright is the exception and the public domain is the rule. From there, the thinking is exactly right. If the goal of copyright is to promote the progress of science and the useful arts, then let's focus on what should be considered "unfair" and build from there, rather than starting with a wall that says "everything is unfair" and here are a tiny few exceptions.

Re: Competition

a digital copy of a song given away to someone is a direct competitor to the orginal work, thus is infringement. your giving away the music may have interfered with a commercial transaction, and therefore is a "commercial purpose". you helped someone avoid a commercial transaction and save money.

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Re: Competition

I would add a requirement that it copies a substantial portion of the original (see my post below).

You could argue that Star Wars and Star Trek are "direct competitors" because they target the same audience (protestations of sci-fi partisans notwithstanding), even though there's no shared language or expression. You could also argue that you have to copy some expression to be a "direct" competitor, but there's no need to rely on the court making an inference when you can just explicitly require it.

Re: Competition

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

From the World Intellectual Property Organisation:

"To encourage a dynamic creative culture, while returning value to creators so that they can lead a dignified economic existence, and to provide widespread, affordable access to content for the public."

Let's not forget about returning value to the creators so they can put a roof over their heads and food on their tables. No where is copyright's encouragement of creativity expected to deprive the creator of monetary compensation and nowhere in the world is the concept of copyright expected to provide the public with FREE and unfettered access to unauthorized copies. Fair use is typically "paid for" by the royalty sale of media and mechanisms.

Public domain offers no reward to the creator beyond a warm and fuzzy feeling of doing good for mankind -- but you'll die from warm and fuzzy feelings after about a week.

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"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

From the World Intellectual Property Organisation:

"To encourage a dynamic creative culture, while returning value to creators so that they can lead a dignified economic existence, and to provide widespread, affordable access to content for the public."

Yes, but please note the preambles to both. From the Constitution it's "to promote the progress." And from WIPO it's "to encourage a dynamic creative culture."

In other words, such exclusions are only legit *if* they do those things. Yet, if there's evidence that you do those things via the public domain -- or do them *better* via the public domain, than the rationale for copyright is a bit less strong.

Let's not forget about returning value to the creators so they can put a roof over their heads and food on their tables

Yes, you do that with a good business model. That does not require copyright.

No where is copyright's encouragement of creativity expected to deprive the creator of monetary compensation

Whoa there, nelly. No one is "deprived" of monetary compensation by the removal of a monopoly. Did taking away the sugar monopolies "deprive" anyone of monetary compensation... or did it create a much larger overall market via competition, in which everyone benefited?

and nowhere in the world is the concept of copyright expected to provide the public with FREE and unfettered access to unauthorized copies.

Strawman alert!

Public domain offers no reward to the creator beyond a warm and fuzzy feeling of doing good for mankind -- but you'll die from warm and fuzzy feelings after about a week.

Someone is apparently ignorant of the history of the public domain, because the statement above is quite wrong. I mean, laughably so.

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"To encourage a dynamic creative culture, while returning value to creators so that they can lead a dignified economic existence"

If they couldn't make a living they wouldn't do it. If they do it then they are making a living and so the free market will take care of their living expenses and if art is being created then the economy is serving its purpose.

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does a movie convey knowledge to you?

how does watching batman destroy the neighborhood and fly around in his bat car convey knowledge to the use.

I think truly under such an idea entertainment as such DOES NOT convey knowledge and instead conveys a culture. PROTECTING your culture may sound important but if we are to truly become a global world then we must not allow culture to be protected would should if we love and enjoy it learn to set it free

Re: does a movie convey knowledge to you?

@6 NO @12 - your a JERK

why? cause like warner brothers tries to do as well as the Conan estate ( out of copyright in Canada) they will then sue anyone out of the time frame with the premise its always in competition. THIS has hte affect of forever copyright all one has to do is make one work like a tv ep or movie and POOF everyhting always will compete....THUS bad idea.

I think after 25 years for movies and 15 years for tv it goes public domain , if you make a derivative THAT particular work ONLY is again under copyright again. THUS you can see how entertainment and culture may continue to grow.

2 Part Test

It's unfair if:
(1) You copy a substantial portion of it, AND
(2) Your copying lowers the value of the original by serving as a substitute for the original work

Basically, this does two things to existing law:

(1) I take out the two factors about "purpose and character of the use" and "nature of the copyrighted work" from the current two-factor fair use test. They're (a) too vague for my taste and (b) redundant with the two factors I did keep -- e.g. transformative works generally don't copy a substantial portion and don't serve as direct competitors to the original.

(2) It's no longer a multi-factor balancing test. Multi-factor balancing tests yield far too inconsistent results IMHO. Under the above test, in order to qualify as unfair, both parts of the test have to be met.

What is copyright?

Copyright:

What is copyright?

Copyright is a type of property that is founded on a person's creative skill and labour.
It is designed to prevent the UNAUTHORISED use by others of a work, that is:
The original form in which an idea or information has been expressed by the creator.

Copyright is not a tangible thing. It is made up of a bundle of exclusive economic rights to do
Certain acts with an original work or other copyright subject-matter.

These rights include the right to copy, publish, communicate (eg broadcast, make available online) and publicly perform the copyright material.

Copyright holders also have a number of non-economic rights. These are known as moral rights.
This term derives from the French 'droit moral' .

Moral rights recognised in Australia are the right of integrity of authorship, the right of attribution of authorship and the right against false attribution of authorship.

COPYRIGHT IS DISTINCT FROM PHYSICAL PROPERTY:

A clear distinction exists between the copyright in a work and the ownership of the physical article in which the work exists.
(please read this twice)..

For example:

The author may own the copyright in the text of a book even though the physical copy of the book will be owned by the person who purchases it.

(ie, you own a physical copy, but you do not own the right to make a copy of that work).

Eg.2 The purchaser of an original painting does not have the right to make copies of it without the permission of the owner of the copyright:

The right of reproduction remains with the copyright owner, who is generally the artist. (or the legal copyright owner).

And the legal definition of "Fair Use".

COMMON MISUNDERSTANDINGS:
Any use that seems FAIR is fair use. ---- WRONG
In the law the term "FAIR USE" has a specific meaning that only partly overlaps the plain-English meaning of the words.
While judges have much leeway in deciding how to apply fair use guidelines, not every use that is commonly considered "FAIR" counts as fair use under the law.

FOUR FACTOR BALANCING TEST:
1. The purpose and character of the use, including whether such use is of a commercial nature or is for non profit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyright work as a whole; and
4. The EFFECT if the use upon the potential market for or value of the copyrighted work.

Opinion of Joseph Story in Folsum V. Marsh, 9 F.Cas.342(1841), in which the defendant had copied 353
Pages from the plaintiff's 12-volume biography of George Washington in order to produce a separate two-volume work of his own. The court rejected the defendant's FAIR USE defence with the following explanation":

"reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable critcism.
On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticize, but to SUPERSEDE the use of the original work, and substitute the review for it, such a use will be deemed in law a PIRACY.

In, short, we must often look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the same, or diminish the profits, or supersede the objects , of the original work."

IE, you cannot use copies to supersede the use of the original work, that mean sharing files of copyrighted works are superseding the original work, and therefore under the LAW it PIRACY..

Who's definition of copyright is that ? and explain it's implications in legal terms pls

"False. Copyright is a gov't granted monopoly privilege as part of an effort to better promote progress through the wider dissemination of information and education."

Says who ??

"copyright legal definition

n
The exclusive statutory right of literary (authors, playwrights, poets), musical (composers, musicians), visual (painters, photographers, sculptors), and other artists to control the reproduction, use, and disposition of their work, usually for their lifetime plus seventy years. The Copyright Act of 1976 governs most copyrights in the United States. See also copy and fair use."

The owner of a copyright has the right to exclude any other person from reproducing, preparing derivative works, distributing, performing, displaying, or using the work covered by copyright for a specific period of time. Copyrighted work can be a literary work, musical work, dramatic work, pantomime, choreographic work, pictorial work, graphic work, sculptural work, motion picture, audiovisual work, sound recording, architectural work, mask works fixed in semiconductor chip products, or a computer program. Only a concrete "medium of expression" can be copyrighted, facts, ideas, procedures, processes, systems, methods of operation, concepts, principles or discoveries cannot themselves be copyrighted. Items to be copyrighted must be original and not the result of copying another copyrighted property."

Copyright is a type of property that is founded on a person's creative skill and labour.

False. Copyright is a gov't granted monopoly privilege as part of an effort to better promote progress through the wider dissemination of information and education.

Well, you should know that copyright is a RIGHT not a privilege, and it's not a granted monopoly, it's a legal restriction of his works by unorthorised people.

A work is a monopoly (poor descriptive word) by virtue of the fact that it's an original idea, or work. It can never belong to someone else, it's something you though up in you're own brain, after that if someone else does exactly the same thing you can say they copies off you, even if they did not. ... But it would be up to judges to determine that.

So if you create something, and you see that creation used by someone else, and it's not short segments used for education, then you are breaking the copyright laws. and you do not meet the fair use.

(fair use, ofcourse is not part of copyright law par see, it's a seperate act and does not apply everywhere).

So you're definition is misleading at best, but I have to agree what copyright does promote progress. By allowing people to create works and not risk that works will be stolen and used by others. (instead of thinking up their own thing).

Re: Who's definition of copyright is that ? and explain it's implications in legal terms pls

"Copyright is a type of property that is founded on a person's creative skill and labour."

Cool, then the owners of this property are paying property taxes and use taxes (like those of us who own real property are forced to do)? Right?

Copyright has become the way it is (ie automatically granted upon creation, lasting far too long to benefit society, etc) because the government has capitulated to the entertainment industry (or in layman's terms, were bribed).

And by the way who grants copyrights? That would be the GOVERNMENT. Ergo (that means therefore with less letters), copyright is a government granted monopoly. If you don't believe me, go try to make a Harry Potter movie, or wordsmith Catcher in the Rye and see how far you get before getting slapped with a theft, um, copyright infringement lawsuit.

Copyright is supposed to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." but in its current form, it promotes the lining of copyright holders' pockets by making it last so long that NOTHING that was created in my or my parents' lifetimes will be in the public domain until my grandchildren (of whom I have NONE) have finished college.

3/4 of the 20th century's culture is locked up so tight that historians will look back and think that the US went from spirituals to hip-hop and that artists went from painting in cubist and pointilist styles to abstract. We are losing connections to our cultural past because pieces of our culture are 'protected' to the point that they are rotting away in vaults. Movies, books, and recordings are being lost every day because they are controlled by companies who don't give a shit about "Promoting progress" unless they make a gazillion dollars.

And finally, even the courts have ruled that copyright does not entitle one to get paid for their work. They have REPEATEDLY shot down the "sweat of the brow" arguments.

Re: Who's definition of copyright is that ? and explain it's implications in legal terms pls

Are you even reading what you're pasting? That definition says nothing about copyright being property. At all.

Well, you should know that copyright is a RIGHT not a privilege, and it's not a granted monopoly, it's a legal restriction of his works by unorthorised people.

In other words, a monopoly. And not a natural monopoly, but one granted by the government. I don't see what's so confusing about that. I mean, what do you think monopoly means? Maybe there's some confusion or disagreement about that term.

As for rights vs. privileges, I don't personally care which you call it, as long as you understand it's an artifical utilitarian right and not a natural right.

Re: Who's definition of copyright is that ? and explain it's implications in legal terms pls

Says who ??

Says the Constitution of the United States of America, which specifically grants a limited monopoly, also known as an exclusive right, to authors and inventors for their works, for the express purpose of promoting the progress of science and useful arts.

The monopoly defense does not work. A monopoly is when there can be no reasonable competition due to restraint of trade or other subversive practices. Copyright is not a monopoly. Everyone has just as much right to create as any other. Copyright protects the creator of an original work from unauthorized reproduction, etc. so that his work remains his work. It prevents a "non-creator" from profiting from another person's work and protects the creator from losing due compensation from that work because someone offers (unauthorized) copies for free (like downloading from BiTorrent).

Can someone lose money because there is no copyright? Absolutely. Without that kind of protection, what would prevent a foreign country from manufacturing millions of copies of a DVD and flooding the market them? I'm not talking about cheap theater recordings, but perfect digital copies? Copyright laws.

What is fair to one is most assuredly not fair to everyone. Is it fair that I actually have to pay for a DVD or ebook because I don't really like the movie that much but need to waste some time? Yes -- you can go to the library and check the book out (for free) and read it or watch it in the privacy of your home until the late fees start kicking in. Or you can wait until it shows up on a movie channel in 6-12 months. Is it fair that I have to wait because I don't want to pay for it now when I won't have to pay for it later? Yes - you are just lazy or impatient or both. In some ways you are not paying for the movie or book, you are paying for the privilege to watch/read it earlier than most. Actually, if someone doesn't pay for it early it more than likely won't be available to watch for free later. That's how the free market works -- if you like something, pay for it, enjoy it. If you don't, then choose something else. Again, it is not a monopoly.

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The monopoly defense does not work. A monopoly is when there can be no reasonable competition due to restraint of trade or other subversive practices. Copyright is not a monopoly.

It is most certainly a monopoly on that particular work. The fact that you are trying to redefine the market does not change that. When the founders created the copyright system, even they referred to them as monopolies. They are, without a doubt, monopolies.

Copyright protects the creator of an original work from unauthorized reproduction, etc. so that his work remains his work.

No, that's a moral argument. At least in the US there are no moral rights associated with copyright. Copyright serves a single purpose: to promote the progress of science and the useful arts. It's mechanism is to use monopoly rights -- but they should only be allowed if they do, in fact, promote the progress.

That has nothing to do with making sure that "the work remains his work."

It prevents a "non-creator" from profiting from another person's work and protects the creator from losing due compensation from that work because someone offers (unauthorized) copies for free (like downloading from BiTorrent).

There is no such thing as "loss of compensation." There is only a failure to capitalize on the market.

Can someone lose money because there is no copyright? Absolutely. Without that kind of protection, what would prevent a foreign country from manufacturing millions of copies of a DVD and flooding the market them? I'm not talking about cheap theater recordings, but perfect digital copies? Copyright laws.

Ok. Similarly, can someone "lose money" because there is no monopoly right on sugar? Absolutely. Without that kind of protection, what would prevent competing sugar companies from flooding the market with cheap sugar? Sugar monopolies!

Point being: you shouldn't have the gov't backing up your business model. You should compete.

What is fair to one is most assuredly not fair to everyone

Sure, thing, but remember the purpose of copyright. Contrary to your assertion, it is to promote the progress. Thus, it should be what is fair to the majority is likely to be the best at promoting the progress.

That's how the free market works -- if you like something, pay for it, enjoy it. If you don't, then choose something else.

I'm curious which definition of free market includes gov't granted monopolies that last over a century?

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So following along those lines of reasoning, in your utopia, I can (without fear of legal action) make perfect copies of another person's work and sell them or even give them away in whatever venue I wish. Since I have my own personal wealth at my disposal, I can effective run the competition out of business by making sure my copies of his product are always available where he is trying to sell his goods. I can even cut deals with the retailers and offer them lower overhead and bigger profits if they buy from me instead of the original inventor/creator/author. It doesn't matter that I did nothing but buy one copy of his invention/book/dvd/etc, because he has no intrinsic "rights" to earning a living from his work. His business model is simply "less capable" than mine. And I can do that to whomever I choose because there are no laws that make that illegal.

You kill one "monopoly" with another. You keep claiming that copyright is to promote progress, but you ignore the fact that it is the reasonable protection from unauthorized use that encourages people to share that information. Why would anyone publish anything if someone else can pickup a first run copy, mass produce the item at a lower price point, and make sure their copies are available everywhere?

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So following along those lines of reasoning, in your utopia, I can (without fear of legal action) make perfect copies of another person's work and sell them or even give them away in whatever venue I wish. Since I have my own personal wealth at my disposal, I can effective run the competition out of business by making sure my copies of his product are always available where he is trying to sell his goods.

Interesting hypothetical. Of course, it's totally bogus and we have evidence to show it's totally bogus. First of all, people want to buy *authentic* works, so even if you can copy, you can't sell authentic works. Second, you can build better business models that focus on direct access to the content creator.

You kill one "monopoly" with another. You keep claiming that copyright is to promote progress, but you ignore the fact that it is the reasonable protection from unauthorized use that encourages people to share that information. Why would anyone publish anything if someone else can pickup a first run copy, mass produce the item at a lower price point, and make sure their copies are available everywhere?

Again, there is evidence that what you are saying is bogus in the real world. Take, for example, the 9/11 Commission report. It, as a gov't document, was in the public domain. The gov't, however, worked out a deal with a publisher (I forget who), who paid something around a million dollars for the "rights" to publish it first. That publisher got access to it before anyone else, and was the first publisher.

Other publishers had their copies on the market in a matter of days.

All identical.

And yet, the first one to market ended up with the majority of the market, because they were *first*.

And, of course, you seem to suggest the only thing that can be sold is the good itself, rather than the complementary *scarcities* associated with the content.

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Direct access to the content creator does not solve any problems -- it only serves to compound them. Multiple sites for individual creators? I can offer my goods on a "one stop shopping site" for a price that will allow me to continue doing what I do best and still put food on the table, but without some protection against copying, a disinterested 3rd party site can purchase one copy and undercut my price by 50%, 75%, 90%, or 100% because the cost of distribution is almost zero. When the supply is almost infinite, the supply & demand equations lead to a zero price regardless of the demand. Advertisements on websites work for high volume hits like Google, Yahoo!, MSN, etc. but those very advertisements lose importance without the copyright protections you oppose.

The "first" 9/11 Commission report sold the most not because it was "authentic" but because it was first. The news interest was what drove the 98% market saturation in the first few days - not the authenticity. After two days, the "news" was no longer "news". People don't want to buy "olds". The "authentic works" argument against copyright is just as bogus with respect to downloaded music or videos. The consumer is not buying any material goods, just bits and bytes. It does not matter if I download the file from iTunes or Napster or Amazon, the content is just as "authentic" as if I purchased a CD from the singer himself. Again your argument is (in your words) bogus. Your assumption is that people will pay for content out of the goodness of their hearts instead of downloading identical content for free. If the draw of something being free were not sufficient market pressure to entice a sale, then there would be no reason for grocery stores to advertise "buy one get one free" sales. If at the comfort of my recliner without fear of reprisal, I can click a button to download a song for free or I can click a button to pay some company $.99 for the same song (which very little actually goes to the author), I will ALWAYS chose the "free" button. You can suggest otherwise, but you are wrong. The majority of people do the "right" thing because the "other" thing is "wrong" -- without copyright protection, the "other" thing stops being "wrong".

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But that report is not relevant to copyright protections because the government's livelihood does not depend on the sale of the report and there was no desire or expectation to generate a profit from its publication. This is distinctly different than the needs of the common author or musician. The initial publisher took no risk in the endeavor because the demand was pre-existing and well known -- also an atypical situation.

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You gave no information to show that my assertions were wrong. What you gave was your opinion that because there copies of the printed version in a bookstore, there must be lots of people buying it. You are comparing apples to oranges and expecting the outcome to be the same.

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Reread my post. I told you that the 9/11 Commission report is a popular title today. This means that your assertion that people don't want old news is wrong. (Of course, the entire history section in bookstores is at least equally as indicative of a public interest in 'old' news.)

In fact, if you read my post, you can see that my comment about keeping it in stock following my assertions that it's a popular title. This means that my comment is a detail, not a supporting fact. In other words, I don't think that it sells well because it's kept in stock. I think that it sells well because people frequently purchase it.

The software matrix that stocks stores in the top three most popular American chains agree, and keep the book stocked.

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Don't misinterpret a matrix that keeps items in stock as an indication of continued popularity. Sure there may be trickle sales enough to justify moving items from the warehouse to the bookshelf but Amazon and Barnes&Noble both list this as a bargain item (which means that it's not moving very well and they would really really like someone to give them something - anything - for it). I did a quick search of a several major B&N brick and mortar stores around the country and none of them carried the authorized version in the store and it had a sales rank of 19535 (paperback) and 228195 (hardback) - not something I would write home about. FWIW, the hardback is not available in any B&M store in the country that I can tell. Maybe its a regional thing or you're thinking of the conspiracy version?

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I can offer my goods on a "one stop shopping site" for a price that will allow me to continue doing what I do best and still put food on the table, but without some protection against copying, a disinterested 3rd party site can purchase one copy and undercut my price by 50%, 75%, 90%, or 100% because the cost of distribution is almost zero. When the supply is almost infinite, the supply & demand equations lead to a zero price regardless of the demand.

Just to be clear, you are describing the situation *today*, not some theoretical scenario. So it sounds like you understand the problem, and see that businesses should work on some other way to make money. The legal efforts to date have had NO effect on the free distribution, and I see no reason to think future efforts will work any better.

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Direct access to the content creator does not solve any problems -- it only serves to compound them

Um. Wow. Direct access is a scarcity you can sell for a lot of money. It solves tons of problems.

I can offer my goods on a "one stop shopping site" for a price that will allow me to continue doing what I do best and still put food on the table, but without some protection against copying, a disinterested 3rd party site can purchase one copy and undercut my price by 50%, 75%, 90%, or 100% because the cost of distribution is almost zero.

Right. Because you're a bad business person and are selling an infinite good. That's YOUR mistake. It has nothing to do with copyright. You should be selling scarcities that are made more valuable by your content instead.

When the supply is almost infinite, the supply & demand equations lead to a zero price regardless of the demand.

Exactly. So why are you trying to fight the free market instead of using it to your advantage?

Advertisements on websites work for high volume hits like Google, Yahoo!, MSN, etc. but those very advertisements lose importance without the copyright protections you oppose.

First of all, who said anything about advertising? Second, you are 100% wrong that ads need copyright protection.

The "first" 9/11 Commission report sold the most not because it was "authentic" but because it was first. The news interest was what drove the 98% market saturation in the first few days - not the authenticity.

The 9/11 Commission report was used as an example of first mover advantage, as you note -- not authenticity. But the point is that ONCE THERE WAS competition in the market, it was the first publisher (Random House, I think?) that STILL got the majority of the market.

Similarly, just look at the pharma market once drugs go off patent. The brand name one still is sold for 5x to 20x the generic price. Why? Brand name from being first. There's a huge benefit to being first.

After two days, the "news" was no longer "news". People don't want to buy "olds".

Except... wrong. The 9/11 Commission report kept selling like hotcakes long after there was competition in the market.

The "authentic works" argument against copyright is just as bogus with respect to downloaded music or videos. The consumer is not buying any material goods, just bits and bytes. It does not matter if I download the file from iTunes or Napster or Amazon, the content is just as "authentic" as if I purchased a CD from the singer himself. Again your argument is (in your words) bogus. Your assumption is that people will pay for content out of the goodness of their hearts instead of downloading identical content for free.

Talk to Nina Paley, and see how well it's worked for her. Talk to Trent Reznor and see how well it's worked for him.

I'm not saying they'll buy it out of the goodness of their hearts. I'm saying they buy from the original artist because that artist offers something *different* and something *scarce* BEYOND the content that they can't get elsewhere.

You really must be new to this site. If you'd like some background, please read the following two posts:

If the draw of something being free were not sufficient market pressure to entice a sale, then there would be no reason for grocery stores to advertise "buy one get one free" sales.

No, that's EXACTLY my point. The draw of free is fantastic. That's why you should use it to your advantage. You're saying the draw of free is great... and then you refuse to use it because you want copyright to allow you not to offer the market price. What sort of business person says "gee, what a great promotion, I'm going to refuse to use it."

Yes, the draw of free is great for promotions. Learn to use it to your advantage.

If at the comfort of my recliner without fear of reprisal, I can click a button to download a song for free or I can click a button to pay some company $.99 for the same song (which very little actually goes to the author), I will ALWAYS chose the "free" button.

First, not "always," but yes, certainly most of the time. You're making my argument for me. But you're missing the last part: which is that you STOP selling those infinite goods, and instead use them to make scarcities more valuable and sell them.

The majority of people do the "right" thing because the "other" thing is "wrong" -- without copyright protection, the "other" thing stops being "wrong".

The majority of people don't know about copyright law at all. Either way, the point is you should be using the free stuff to your advantage, rather than LIMITING your own market.

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My point is that there are many copyright situations outside of the music performance industry whereby the scarcity story does not apply - where long term, mass production of a creative work is the end result. What protects those products in your business model? Without copyright protection, absolutely nothing.

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long term, mass production of a creative work is the end result.

You're not getting it. If your business is producing something that costs nothing to produce, then your business model sucks. All you're saying is that there are people pursuing bad business models. Yes, that's correct. That fact on its own does not mean the government needs to protect those models. Even the fact that you can't imagine any scarcities to exploit still doesn't mean that. The free market is really good at finding ways to make money from demand. Let it do its job.

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It's not a defense. You can't go to court and say, 'Well, Your Honor, my defense is that it's a monopoly.'. There's no defense about it. It's just a word used to accurately describe this institution.

A monopoly is when there can be no reasonable competition due to restraint of trade or other subversive practices.

In economics, a monopoly exists when a specific individual (or business) has control over a particular product, and can decide the terms on which other individuals shall have access to it. That describes copyright to a T.

An illegal monopoly exists when a specific individual (or business) has control over an entire market of products or services. (See Bell Telephone or Microsoft.)

Monopolies over single works, or bodies of work, don't generally fit that definition.

Can someone lose money because there is no copyright? Absolutely.

Only if your business model relies on that kind of protection. There are many business models that don't rely on those protections, which shows that those kinds of protections are not necessary. (I'm not saying that they aren't useful, just not necessary.)

Without that kind of protection, what would prevent a foreign country from manufacturing millions of copies of a DVD...?

That has already happened, despite millions of taxpayer dollars spent to stop it.

That's how the free market works...

A free market is a market without government intervention and regulation. A marketplace that includes government intervention and regulation, like copyright, is not a free market. So, no, this is not how a free market works.

Sigh. Let me explain:

The United States believed that it would be helpful if people had a limited time in which to create and market their works. They thought that this would help promote science and useful arts.

(They also believed that it would be good if voting was restricted to white male landowners.)

Today, the right of limited exclusivity granted by the government has become bloated. It's no longer limited to useful arts and sciences, as is specified in the Constitution, and it is no longer limited in a fixed number of years, as it was originally intended.

Really, it's just bad. It's used as a bludgeon by big companies to stamp out little guys who might make a product that competes with theirs, which is the opposite of promoting useful arts and sciences.

Take, for example, the iPhone. Did you know that so many patents have been granted that it's impossible for anyone else to create a touchscreen telephone? The companies that have are tied up in lawsuits with each other, based on the sorry mess of laws that started with a simple clause in the Constitution, for a simple and clearly defined purpose.

That certainly doesn't promote progress. It impedes it. And that's only one of millions of examples.

Our copyright and patent system is just as outdated and harmful as the idea that only white male landowners should be able to vote. Personally, I think it's time for another amendment.

Now, you keep pasting all of this information from various places on the Internet, so I can so why you're confused. You have to remember that the Internet is international, but this discussion is specific to the United States.

Copyright and patents are different in almost every country, so you have to bone-up on what those things means here, in the U.S., and where those terms come from historically.

Oh, and about those useful arts and sciences that are covered by monopolies here in the U.S.? They exist in other countries, as well, including many, many countries without similar exclusiveness. You know what the difference between their products and ours? We pay more.

So, if I understand this correctly, all printed, recorded material should be free to the public without any requirement for remuneration to the author because the good of the many outweighs the good of the one.

The author will receive random checks in the mail from people that just so happen to get a copy of his/her work out of the goodness of their heart. Surely enough to live off and send their kids to college.

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"So, if I understand this correctly, all printed, recorded material should be free to the public without any requirement for remuneration to the author because the good of the many outweighs the good of the one.

The author will receive random checks in the mail from people that just so happen to get a copy of his/her work out of the goodness of their heart. Surely enough to live off and send their kids to college."

Hey, interesting story: I make money WITHOUT the benefit of copyright! It's true, you too can make money without having the government propping you up.

You can still SELL creative works without copyright. I know artists who sell their wares without the crutch of copyright. And yes, they make a living and send their kids to college.

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So, if I understand this correctly, all printed, recorded material should be free to the public without any requirement for remuneration to the author because the good of the many outweighs the good of the one.

No one said that. You should try actually reading what was written.

But, given that the purpose of copyright law is, in fact, "the good of the many," if anyone were saying that, it would be in line with copyright law.

The author will receive random checks in the mail from people that just so happen to get a copy of his/her work out of the goodness of their heart. Surely enough to live off and send their kids to college.

You must be new to this site (and to business). There are tons of business models that have nothing, whatsoever, to do with copyright, and are quite different than waiting for people to pay out of the goodness of their hearts.

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Like Trent Reznor of NIN? 20 million albums and he's promoting free downloads -- he can afford to do that. He also mentioned in a 2009 interview with Kevin Rose of Digg that if given the choice between free or paid downloads, only 18% of the public would pay for the download. He also does not release his "rights" to his music (Creative Common Licenses are not the same as copy free).

None of the business models proposed on this site address the issue of sheet music or scripts for plays and musicals used by schools, theatres, and orchestras. Without copy protection, there is nothing to support and sustain that creative business.

I agree that there are abuses of the copyright system and in some ways it has gotten out of hand -- but there are just as many abuses and exploitations against the creators of original works that there's plenty of blame to go around about who started what.

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Like Trent Reznor of NIN? 20 million albums and he's promoting free downloads -- he can afford to do that.

I like how you ignore Nina Paley. Ok. If we skip over Reznor, then how's about Jonathan Coulton. Or Corey Smith. Or the thousands of others who offer free downloads, but sell scarcities?

He also mentioned in a 2009 interview with Kevin Rose of Digg that if given the choice between free or paid downloads, only 18% of the public would pay for the download.

Indeed. But again you seem entirely focused on selling the infinite good. That's just dumb.

None of the business models proposed on this site address the issue of sheet music or scripts for plays and musicals used by schools, theatres, and orchestras. Without copy protection, there is nothing to support and sustain that creative business.

No offense, but just because you are unable to comprehend a business model it does not mean they do not exist.

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I understand business models. I also realize that all the business models mentioned on this site include (and rely) on the protections offered by the very copyrights you abhor. Copyleft, Creative Commons, GNU, etc. all depend on legal control over the "free" and credited distribution of content. You can only enter into a contract with the first person in the chain. You can sue him for breach of contract, but all subsequent copies are out of your control. Lack of any legal recourse through copy protection eliminates the requirement than any copy retain acknowledgement of the author whatsoever and allows free access and reproduction of any work by anyone at anytime. There are scenarios where scarcity and personalization can demand a premium, but those tend to be the exception and not the rule. We live in a mass produced world (if you haven't noticed). While the business models listed tend to focus on the music performance industry, copyright laws cover significantly more mundane creations that do not fit the models presented.

A very simple case that highlights the real need for copyright and/or patent laws relates to the invention of the intermittent windshield wiper. Robert Kearns invented the IWW and presented his invention to the "Big Three" in the mid-sixties. All three rejected his invention but by 1969 each were selling products containing IWW. If he had not won his infringement case (even though it was determined that there was no willful intent), he would have simply played the part of a disposable pawn in the whole process of innovation. Without such protections, what inventor would ever chose to present an idea to a company? What inventor could ever receive any license or royalty for an invention that he could not produce on his own? These laws were designed to prevent large companies from cherry picking ideas without the expectation of having to actually pay for them. Corporations (unlike real people) are definitely not going to play by any altruistic rule book. That's just naive.

With respect to the example of sheet music for choirs, bands, and orchestras, without copyright protection there is no scarcity. The music is not seen by the audience and there is no sentimental value attached to a piece of paper. The audience may be entirely ignorant of the composer's reputation. The cost of printing and delivery are far greater than the cost of local reproduction of a single copy. This is actually one area where copyrights are routinely infringed upon and there is even less visibility of such violations. Never the less, I know that if given the choice of purchasing 150 copies of an arrangement at $2 vs borrowing a copy from another group or looking it up on a website (hey it's no longer illegal), the 18% figure cited for music downloads would most likely be in the low single digits.

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I understand business models. I also realize that all the business models mentioned on this site include (and rely) on the protections offered by the very copyrights you abhor. Copyleft, Creative Commons, GNU, etc. all depend on legal control over the "free" and credited distribution of content.

Then start again. The business models I recommend have nothing to do with CC, Copyleft, GNU or anything that requires copyright. You make many assumptions. Many of them are wrong.

Lack of any legal recourse through copy protection eliminates the requirement than any copy retain acknowledgement of the author whatsoever and allows free access and reproduction of any work by anyone at anytime.

You are confusing moral rights with copyright. Don't do that. We're not new at this.

Secondly, even in a world without copyright, there are social mores and pressure to properly acknowledge who did the work originally. Hell, plagiarism is not against the law (mostly) in the US, but the *social* stigma makes it very discouraged. Social mores don't require copyright.

A very simple case that highlights the real need for copyright and/or patent laws relates to the invention of the intermittent windshield wiper. Robert Kearns invented the IWW and presented his invention to the "Big Three" in the mid-sixties. All three rejected his invention but by 1969 each were selling products containing IWW

A nice myth made up by Kearns. We covered the real story on this site.

Don't believe the stories sold to you by Disney.

Without such protections, what inventor would ever chose to present an idea to a company?

Those with better business models.

What inventor could ever receive any license or royalty for an invention that he could not produce on his own?

Why do you assume licensing and royalties are the only possible business model?

These laws were designed to prevent large companies from cherry picking ideas without the expectation of having to actually pay for them.

Not so at all. The laws were designed to promote the progress of the useful arts (by which was meant inventions). It said nothing about protecting a small player against a large player.

Corporations (unlike real people) are definitely not going to play by any altruistic rule book. That's just naive.

Why do you keep bringing up altruism? No one has said that altruism is the business model. So it's pretty weak to pretend that's what others are saying.

With respect to the example of sheet music for choirs, bands, and orchestras, without copyright protection there is no scarcity.

Just because you can't find the scarcity, doesn't mean it doesn't exist. There are scarcities. Feel free to hire us to help you find them.

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...without copyright protection there is no scarcity...

The government may have conferred rights on these people, but they simply don't work. You can find anything you want on the Internet for free and there isn't anything stopped people from taking advantage of that. You can wave a piece of paper detailing the law and the idea of an artificial scarcity at these downloads all you want, but it doesn't stop them.

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None of the business models proposed on this site address the issue of sheet music or scripts for plays and musicals used by schools, theatres, and orchestras. Without copy protection, there is nothing to support and sustain that creative business.

So these creative businesses didn't exist before the United States had copyright?

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Copyrights did not begin in the United States. One of the earliest legal embodiments of copyright protection most closely matching those in the US dates to 1709 with the Statute of Anne (UK), but similar protections were in existence with the Stationers Company which received its royal charter in 1557. UK was not alone or even the earliest because Pope Alexander VI issued a bull in 1501 preventing the unlicensed printing of books. Another early form of copyright laws can be traced to the early Irish Brehon Laws around 563. Competition laws can be easily traced by to the Roman Empire to around 50 BC. Please do not begin to imply that copyright laws started in America.

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"Please don't 'begin to imply' that any law can be easily traced to 50 BC. As a history buff, I know that's total bunk."

I would encourage you to read LEʹGES JUʹLIAE, which is essentially a collection of laws enacted primarily during the reign of Julius Caesar and Augustus. Specifically DE ANNONA ET TRIBUTIS primarily relates to various aspects of merchant regulation and taxation of trades. The composite set of laws were enacted between 89 BC and 47 BC give or take.

FWIW, The Code of Hammurabi dates to 1750 BC and contains several laws which relate to business dealings. The Code of Hammurabi predate Mosaic laws -- some of which bear a striking similarity to the Babylonian code. It cannot be denied that many of todays current laws are derived from Mosaic law (e.g., "Thou shalt not steal") regardless of your belief that Moses was a real person or not. So, yes, I am implying that current laws can be traced not only to 50 BC, but 1700 years before that.

Copyright is more commonly used to protect the creator's financial interests, ensuring, say, the author of a play receives royalties whenever his work is performed or excerpted. Not paying creators for use of their work is a sure way to disrupt the progress of art and science.

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You know how else you can disrupt the progress? By having the length of copyright last way too long. I've turned into a copyright abolishionist, thanks to that length. How does that help? And I'm an artist!

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Copyright is more commonly used to protect the creator's financial interests, ensuring, say, the author of a play receives royalties whenever his work is performed or excerpted.

Yes, clearly that's how it's used now. However, that is not its purpose.

Not paying creators for use of their work is a sure way to disrupt the progress of art and science.

1. Not having copyright does not mean not paying creators.
2. Your statement may not even be correct.
3. This post is not suggesting either not paying creators, or getting rid of copyright. So even if true, your statement is irrelevant.

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Property rights and copyrights are both backed and granted by the government. There are no rights in nature but those of tooth and claw.

We're talking about monopolies. Your monopoly on your property is there because while you're controlling it, nobody else can control it too. You have exclusive control. It is this way by nature, not by decree. The fact that you are the particular person controlling it right now is not particularly important; the point is that by its nature it can be owned by one person at a time (I'm simplifying by ignoring things like collective or several ownership, ownership by corporation, etc). Copyright is not like that. By nature, you do not control the creation once you have published it. The only reason you have such control is because the law has granted it to you. It is an artificial monopoly, thus entirely different from the natural monopoly of physical property.

Feel free to read up on "amoralism".

What does that have to do with it?

And often they are justified in doing so.

Possibly, but that is missing the point. The point is that suing is not competing. Suing is probably (I would say almost certainly) less net benefit to society than competing.

Feel free to read up on "unfair competition law". The free market is not infallible. Feel free to read up on "market failures".

I thought we were talking about copyright.

Quite simply, there is no empirical evidence for [natural law].

No problem. Then copyright law should be based on empirical evidence of its benefit too. But it's not.

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The "technical" reading of the term "monopoly" does allow one to describe copyrighted material as a "monopolistic control of a single item". The more general view of a monopoly is the control of goods and services in a particular market (e.g., oil) for the benefit of a single group, organization, or company. Copyright laws are distinct from laws against monopolistic practices (e.g., the Sherman Antitrust Act) because other authors are free to write their own unique works and market them however they want and wherever they want -- the key word being "unique". To complain about having to pay the original author (directly or indirectly) for these goods is no excuse for abolishing copyright protections altogether.

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Copyright laws are distinct from laws against monopolistic practices (e.g., the Sherman Antitrust Act) because other authors are free to write their own unique works and market them however they want and wherever they want -- the key word being "unique".

Actually, a more important difference is that antitrust law opposes monopolies, while copyright law enforces them.

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Precisely my point. The general interpretation of a monopoly is where there can be no competition in a market or for a range of goods or services because of the practices of one entity (or a small group). Microsoft is sometimes considered a monopoly because it can control (to some extent) the price of its software and hardware that is delivered with its software. Standard Oil was absolutely a monopoly because it controlled all aspects of the oil industry at one time. To equate that level of influence to a single author or artist or musician is nonsensical. While there are abuses of copyright laws relative to corporate ownership of creative works, let's not throw the baby out with the bath water.

Copyright antagonists Boldrin and Levine readily admit that the elimination of copyright protections would probably result in a (financial) loss by the innovator. But that's OK because the benefit to society is more important. This is a gross misinterpretation of the original intent of copyright protections - that society would benefit from the continued creativity of the author not just from the initial creation. The protections themselves encourage continued creativity. They also claim that the patent system held back the Industrial Revolution by several decades while admitting that James Watt and Matthew Boulten did not make a profit (or break even) until 14 years AFTER their original patent was granted even though their design was superior to existing steam engines of the day. Except for maybe Amazon, very few companies can run 14 years in the red and stay in business - and this was with patent protection(!). Pardon me if I don't fall lockstep in line with the belief that copyright and patent laws are bad. There is no empirical evidence (as shown by Boldrin and Levine) that copyright laws stiffle nr encourage invention or creativity. There is plenty of conjecture, but the theories proposed in their book(s) assume an altruistic society where the innovators are rewarded for their work but no such society exists on the entire planet (except maybe Denmark).

The artists and authors that copyright laws were originally intended to help were the type of individuals that are probably not as adept in business as one would hope, but their work is sufficiently creative enough that society would benefit from their continued efforts (as opposed to working 16hrs a day at the cotton gin just to make ends meet).

If there were no need for copyright laws, we would not have them. If there were no need for locks on your doors, you would not have them. If there were no need for jails and prisons, none would exist. Copyright laws exist not because some government official decided they needed something to do, they exist because part of mankind will always try to take advantage of his defenseless brethren.

Monopoly on "particular work"

1. It is most certainly a monopoly on that particular work. The fact that you are trying to redefine the market does not change that. When the founders created the copyright system, even they referred to them as monopolies. They are, without a doubt, monopolies.

so microsoft has a monopoly on the particular works of WinXP, Vista, MSO, Win7.
IBM have a monopoly on IBM computers
Honda has a monopoly on Honda cars

Anything that is a 'particular work' is a monopoly.

Apple have the iPad it's a 'particular work' therefore it's a monopoly.

Mike, if you write an article on Techdirt, it is a 'particular work', you wrote it, no one else did.
Therefore you have a monopoly on that particular combination of words.

To try to narrow definitions and terms to suit you're argument, and to try to muddy the actual issues.

"monopoly" is an emotive term, that I guess is why you're so keen on it. It instills a certain level of FUD, Fear, uncertainty and doubt on the issue.

Using terms like "particular works" and "monopoly" in terms of copyright does not make you case any stronger or clearer.

All copyright law does is protect 'particular works', and by you definition those particular works are by definition a monopoly. They are a NATURAL monoply enshrined in law.

"particular work" does not appear to be a formal legal term, and monopolies are not in themselves necessarily illegal or detremental.

A writer has a monopoly on his own 'particular works' (he after all created it, no one else did).
He has a monopoly on his own particular works, yes of course, but he does not have a monopoly on words, sentences, or books.
There is no monopoly, people can choose to purchase his book or someone else's book.

All copyright law does is stop someone else taking his particular work, and making their own money/profit or gains from it.

That someone else, is quite free to write their own book, or create their own particular work, there is no restriction to that.

You or me, can create a song, or write a book, just like anyone else can. All the law in copyright does is ensure you're particular works the object created from you're own mind is protected under the law.

The name "Linux" is a particular work, no one else can claim to have thought that word up except the person who actually did.
That's a monopoly, ofcourse it is, it's a particular work.
But it's a natural monopoly and by definition of a 'particular work' it can be nothing else.

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Finding references to the term "particular work" is very hard it appears to be not a formal legal term, but what 'particular work' is by you're definition. Is anything created, of course if you write a book, the words in the book, and the story is from you're own mind, NO ONE ELSES.. Therefore it's a 'particular work', and as it came from you're brain, it cannot be anything else but a monopoly.

All that can occur after you make your 'particular work' available to the public, and that the public can (illegally) make copies of (some) copyrighted works.
That copy is NOT the "particular work", it's a facsimile or copy of the original 'particular work'.

What you have done is made a copy of someone's 'particular work', it's not real, (it's a copy), and it's not a 'particular work'.

That means if you take a photo of the Mona Lisa, all you have is a copy of someone else's particular work, The painting of the Mona Lisa is a 'particular work' and I put it to the court that all particular works are by virtue of the definition of the term, a natural monopoly.

Re: murder

Were you doing it with your bare hands after being attacked on the street, or were you doing it with a gun that you brought with you to your spouse's lover's home?

Did you do it with a government-issued weapon on the field of battle or did you do it with a knife in a bar fight?"

No, sorry the act of murder is a crime, when you kill someone for self defense it's not murder, it's self defence, when you accedently kill someone it can be either manslaughter or wrongfull death.

When you're in war and you kill someone it's again not murder.

Murder generally requires premeditation, that mean you set out to kill someone, if you did it accendently it may be no charge at all.

Just because someone dies by the hand of another it does not make it murder.

And Mike you still have not explained who the MonaLisa can not be anything but a monopoly.

Just as particular products are a monopoly, you do not have 2 or more sources of Windows7, or the monalisa. And even if you got a "perfect copy" it's a copy it's not the original "particular work".

A copy is not an cannot be a particular work, ever. It's a copy, a facsimile.

And it's just wrong to say that a million exact, perfect copies of the monalisa would damage the value of the original.
How can it not damage it's intrinsic value, and what gives you the right (copyright) to make that decision ?

After all you did not paint it, and you have no idea about the creators wishes. You just want one for yourself for free.

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It's actually not hard to make a reproduction of the Mona Lisa. You can buy them today, on the Internet or in stores. It's not legal but it happens, anyway. Since it's already happening, I can tell you that people still value the original far above the copies, and that waving a piece of paper with US laws doesn't stop those sales.

Leave it to Doctorow to put it succinctly. The perfect answer to all of the people who insist that copyright is perfect just how it is:

As a practical matter, we live in the 21st century and anything anybody wants to copy they will be able to copy.

If you are building a business model that says that people can only copy things with your permission, your business is going to fail because whether or not you like it, people will be able to copy your product without your permission.

The question is: what are you going to do about that? Are you going call them thieves or are you going to find a way to make money from them?